"You Break It, You Buy It" policies - validity of
Rich Carreiro
not all of the rooms (and not at/in the entryway or first room,
either) there were the typical "if you damage an item, we regret that
we will have to charge you the full purchase price plus sales tax"
signs.
Just how enforceable are they? IANAL, but:
* What consideration have I received that would go towards
making these signs a binding contract?
* There's no language saying anything like
"your continued presence in the gallery constitutes
acceptance of these terms", so again, how does the
sign bind me?
* What happens if I break something before I come to
a room where one of these signs is posted, anyway?
I'm sure you guys can think of a ton of other similar things :-)
And no, I did not break anything. :-) But seriously, I was
wondering about whether or not these signs accomplish anything
aside from hoping to intimidate people into being more careful
and possibly intimidating someone into accepting a responsibility
they did not(?) legally have.
--
Rich Carreiro rlc...@animato.arlington.ma.us
Stan Brown
>I was in an art gallery the other day, and I noticed that in some but
>not all of the rooms (and not at/in the entryway or first room,
>either) there were the typical "if you damage an item, we regret that
>we will have to charge you the full purchase price plus sales tax"
>signs.
>
>Just how enforceable are they? IANAL, but:
>* What consideration have I received that would go towards
> making these signs a binding contract?
I don't think the signs, as such, are enforceable -- because to a
large extent they restate what is true at common law. If you
negligently damage the property of another, you must pay the amount
of the loss.
The question that the signs prejudge, and which may not be correct,
is the amount of the owner's loss. It must be the amount the owner
paid, plus the owner's reasonable expectation of profit. That may or
may not be the difference between owner's cost and asking price,
depending on how much "haggling" is customary for ordinary
purchases. I don't know about sales tax, since compensating the
owner for a loss caused by your carelessness wouldn't be a "sale".
Suppose you refuse to pay for a $4000 china figurine that the owner
paid $1000 for? The owner will take you to court. The owner will
have to show that you broke it, that it wasn't placed where a
careful person would have broken it, and the amount of the owner's
loss. The judge would probably award the owner something between
$1000 and $4000, figuring that the owner would have been unlikely to
get a 300% profit any time soon.
What are the signs for? Most people figure they have to do what a
sign says. So by having the signs posted, the owner resolves most
incidents of breakage quickly and at the full sale price. But if you
broke something, it would be possible (and prudent) to offer less
than the full asking price in settlement. If it got to court, it
couldn't hurt to say "Judge, I admitted breaking this thingamabob,
and I offered $2500 right away which was the owner's cost plus a
profit. After all, there's no telling how long it might have sat on
the shelf unsold if I hadn't broken it. I'm prepared to pay for my
clumsiness, but I don't think I should have to pay the full asking
price because it could well have sold for a lower price."
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com
Christopher Green
news:<mlt0vvg7gea1qdiqp...@4ax.com>...
> I was in an art gallery the other day, and I noticed that in some but
> not all of the rooms (and not at/in the entryway or first room,
> either) there were the typical "if you damage an item, we regret that
> we will have to charge you the full purchase price plus sales tax"
> signs.
>
> Just how enforceable are they?
One informal but well-thought-out opinion that these policies are
widely thought to be enforceable but in reality unenforceable, both
legally and practically:
http://www.sunshineartist.com/magazine/sellerbeware.htm
The general argument is that if a merchant displays goods in a way
that encourages customers to touch or handle them, he has no recourse
against customers who do what he invited them to do, even if they do
so clumsily.
--
Not a lawyer,
Chris Green
Isaac
<rlc...@animato.arlington.ma.us> wrote:
> I was in an art gallery the other day, and I noticed that in some but
> not all of the rooms (and not at/in the entryway or first room,
> either) there were the typical "if you damage an item, we regret that
> we will have to charge you the full purchase price plus sales tax"
> signs.
>
> Just how enforceable are they? IANAL, but:
> * What consideration have I received that would go towards
> making these signs a binding contract?
> * There's no language saying anything like
> "your continued presence in the gallery constitutes
> acceptance of these terms", so again, how does the
> sign bind me?
I guess they are going to give you the broken item. They argument
would be that you accept the contract when you break the item.
> * What happens if I break something before I come to
> a room where one of these signs is posted, anyway?
Would you have been negligent? In that case you can consider the sign to
be an offer to settle.
Isaac
Stuart O. Bronstein
> I was in an art gallery the other day, and I noticed that in
> some but not all of the rooms (and not at/in the entryway or
> first room, either) there were the typical "if you damage an
> item, we regret that we will have to charge you the full
> purchase price plus sales tax" signs.
>
> Just how enforceable are they?
If you are in the shop, see the signs and then damage the goods, it
appears that you have accepted their offer to purchase the product.
> IANAL, but:
> * What consideration have I received that would go towards
> making these signs a binding contract?
You bought it. How's that for consideration?
In addition to that, you have damaged someone else's property. For
that alone you'd be liable for damages unless you show that you were
not negligent.
> And no, I did not break anything. :-) But seriously, I was
> wondering about whether or not these signs accomplish anything
> aside from hoping to intimidate people into being more careful
> and possibly intimidating someone into accepting a
> responsibility they did not(?) legally have.
I haven't seen a case dealing with these signs specifically. But I
had a client that was an art gallery, that had signes on the walls
that said that property that was purchased could only be returned
for 30 days.
They were sued when someone bought a painting, held on to it for
months and then decided that he wanted to return it. The gallery
told him they'd sell if for him, but they wouldn't simply take it
back and refund his money. The buyer sued, and lost. The judge
found the signs very significant.
Stu
bat
RC> but not all of the rooms (and not at/in the entryway or first
RC> room, either) there were the typical "if you damage an item, we
RC> regret that we will have to charge you the full purchase price
RC> plus sales tax" signs.
RC> Just how enforceable are they?
I'm not a lawyer, but I think that they might have a merit if they were not
insured, and what you broke was their loss. But I hardly imagine gallery
items w/o insurance.
Most likely, they wouldn't be able to even stop you to find out whom to
charge.
Isaac
I didn't see significant legal arguments in that article. The gist
was that the the merchant might find it difficult to prove negligence,
that it would not promote goodwill to sue customers, and that the
customers could probably run out of the store before you caught
them. I wouldn't recommend relying on that article other than as
a cautionary tale for merchants.
Isaac
Joshua Levy
news:<mlt0vvg7gea1qdiqp...@4ax.com>...
> not all of the rooms (and not at/in the entryway or first room,
> either) there were the typical "if you damage an item, we regret that
> we will have to charge you the full purchase price plus sales tax"
> signs.
>
> Just how enforceable are they? IANAL, but:
> * What consideration have I received that would go towards
> making these signs a binding contract?
> * There's no language saying anything like
> "your continued presence in the gallery constitutes
> acceptance of these terms", so again, how does the
> sign bind me?
> * What happens if I break something before I come to
> a room where one of these signs is posted, anyway?
Note: I am not a lawyer. This is not legal advice.
I think that you are using contract law to analyse these signs, and
I think that is a mistake. The sign is not attempting to create
a contract, it is just informing you of something that is already
true.
If you break something, you need to pay for it. This is true
if there is a sign there or not. The purpose of the sign is to
remind you, and raise the chances that you will actually pay.
If you break a window of my car; I can sue you for the money
to fix the window. I don't need a sign that says "people breaking
this window will pay for it". Breaking stuff in a store is no
different.
Joshua Levy
Stan Brown
>I'm not a lawyer, but I think that they might have a merit if they were not
>insured, and what you broke was their loss. But I hardly imagine gallery
>items w/o insurance.
Insurance never has anything to do with who is liable. If you break
something, you are liable for it whether or not the owner is
insured. The difference is that if _you_ have insurance and break
something, _your_ insurance may pay for it. But the liability
legally is still yours.
(This is subject to the interesting article Chris Green cited in
this thread, suggesting that the customer is not liable for
breakage, in certain states anyway, unless it was deliberate. But
again, the presence or absence of insurance is irrelevant.)
Barry Gold
>I was in an art gallery the other day, and I noticed that in some but
>not all of the rooms (and not at/in the entryway or first room,
>either) there were the typical "if you damage an item, we regret that
>we will have to charge you the full purchase price plus sales tax"
>signs.
>
>Just how enforceable are they? IANAL, but:
>* What consideration have I received that would go towards
> making these signs a binding contract?
Probably none in this case. If it were at the door, it _might_ be
that allowing you to enter was "consideration", but under the
circumstances I doubt it.
>* There's no language saying anything like
> "your continued presence in the gallery constitutes
> acceptance of these terms", so again, how does the
> sign bind me?
See above.
>* What happens if I break something before I come to
> a room where one of these signs is posted, anyway?
Probably the same thing that would happen if you broke something in a
room where the sign is posted. They'll try to intimidate you into
paying for it.
But legally I suspect that standard negligence rules apply.
In this case the title rests with the gallery (or the original
artists/previous owner if "on consignment"), so the "risk of loss"
also rests with them.
But if the breakage results from your carelessness, then you would
be liable under negligence theory, regardless of whether the sign was
there or not.
>And no, I did not break anything. :-) But seriously, I was
>wondering about whether or not these signs accomplish anything
>aside from hoping to intimidate people into being more careful
>and possibly intimidating someone into accepting a responsibility
>they did not(?) legally have.
I think that they are just a reminder that if you pick something up
and break it, you are _probably_ negligent and would have to pay for
it. I have my doubts about the sales tax. If you are liable under
negligence, it's only for their loss which probably doesn't include
tax. In fact, it's probably less than the listed price of the item.
After all, their actual loss is what they paid for the item, plus
something for the "cost of money" since then and for giving it
shelf/wall space. At least, that's what I'd argue if somebody tried
to get me to pay for something on that basis. I bet we'd end up with
something in between.
And if the breakage really isn't due to your negligence, you probably
wouldn't be liable at all. Frex, if you pick something up because
there is a detail not visible when it's on the shelf, and a gallery
employee jostles you and you drop it, that's arguably not negligence
on your part.
But in general, if you want a closer look at something, you are
well-advised to ask an employee of the place to show it to you. Then
you won't have to argue with them if something bad happens.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Bob Brenchley.
On Tue, 30 Dec 2003 16:16:04 -0500, "Stuart O. Bronstein"
<spam...@lexregia.com> wrote:
>> IANAL, but:
>> * What consideration have I received that would go towards
>> making these signs a binding contract?
>
>You bought it. How's that for consideration?
>
>In addition to that, you have damaged someone else's property. For
>that alone you'd be liable for damages unless you show that you were
>not negligent.
Surely Stuart it is the other way round. The shop owner would have to
show that the customer was either negligent, or that they deliberately
damaged the goods in malice, for any claim to succeed.
--
Bob.
The facts expressed here belong to everybody, the opinions to me. The
distinction is yours to draw...
.
Stuart O. Bronstein
> bat wrote:
>>I'm not a lawyer, but I think that they might have a merit if
>>they were not insured, and what you broke was their loss. But I
>>hardly imagine gallery items w/o insurance.
>
> Insurance never has anything to do with who is liable. If you
> break something, you are liable for it whether or not the owner
> is insured. The difference is that if _you_ have insurance and
> break something, _your_ insurance may pay for it. But the
> liability legally is still yours.
You're right under the circumstances. But it's not quite true that
insurance *never* has anything to do with liability. I've seen many
cases in which a court will determine that when there has been an
accidental loss that one party could have insured against and the
other party could not, the part who could have or did obtain
insurance was liable, based on public policy grounds.
Stu
bat
I meant that it's very likely that the owner of the gallery and/or the
artist has insured the items, and the coverage includes accidental damage,
including the damage made by the visitors, and they would collect it later,
after the visitor had been charged full price.
The article referred by Chris Green mentioned that one of the views on the
subject is that the gallery owner assumes the risk by displaying the items
to the public, allowing to touch them, etc. If such a risk exists, most
likely there are insurance policies covering it. I googled "gallery
insurance", and got quite a number of results.
For instance, the discussion at http://www.potters.org/subject55088.htm
shows that artists' expectations of the coverage by their insurance in case
of damage by a visitor is pretty much general practice. Not only the gallery
may have the insurance, but the artist as well. In that light, paying the
full sticker price right at the spot appears somewhat naive.
Seth Breidbart
bat <b...@bats.com> wrote:
>SB> Insurance never has anything to do with who is liable.
>
>I meant that it's very likely that the owner of the gallery and/or the
>artist has insured the items, and the coverage includes accidental damage,
>including the damage made by the visitors, and they would collect it later,
>after the visitor had been charged full price.
That would be fraud (against their insurance company).
Seth
Isaac
> SB> Insurance never has anything to do with who is liable.
>
> I meant that it's very likely that the owner of the gallery and/or the
> artist has insured the items, and the coverage includes accidental damage,
> including the damage made by the visitors, and they would collect it later,
> after the visitor had been charged full price.
Filing an insurance claim on something that you sold would be fraud.
Isaac
Bob Brenchley.
>
>Insurance never has anything to do with who is liable. If you break
>something, you are liable for it whether or not the owner is
>insured. The difference is that if _you_ have insurance and break
>something, _your_ insurance may pay for it. But the liability
>legally is still yours.
Not necessarily. You either have to be negligent or the act that
damaged the item needs to have been deliberate.
>
>(This is subject to the interesting article Chris Green cited in
>this thread, suggesting that the customer is not liable for
>breakage, in certain states anyway, unless it was deliberate. But
>again, the presence or absence of insurance is irrelevant.)
I agree with you on insurance.
Eliyahu Rooff
"Joshua Levy" <joshu...@yahoo.com> wrote in message
news:qkuavv0b47qrp19s0...@4ax.com...
>
> I think that you are using contract law to analyse these signs,
and
> I think that is a mistake. The sign is not attempting to create
> a contract, it is just informing you of something that is already
> true.
>
doesn't make it so. The question is one of enforcability. Unless
there is statutory support for it, a sign doesn't mean anything.
Posting a sign that says, "trespassers will be shot" doesn't give me
the right to shoot someone taking a shortcut across my lawn.
> If you break something, you need to pay for it. This is true
> if there is a sign there or not. The purpose of the sign is to
> remind you, and raise the chances that you will actually pay.
>
> If you break a window of my car; I can sue you for the money
> to fix the window. I don't need a sign that says "people breaking
> this window will pay for it". Breaking stuff in a store is no
> different.
>
It's actually quite different. In the store, you're a business
invitee. By opening the doors to the public, the management invites
people to come in, examine and handle the merchandise. There's no
similar invitation for folks to come do things to the window on your
car.
Eliyahu
The Todal
> news:<mlt0vvg7gea1qdiqp...@4ax.com>...
> > I was in an art gallery the other day, and I noticed that in some but
> > not all of the rooms (and not at/in the entryway or first room,
> > either) there were the typical "if you damage an item, we regret that
> > we will have to charge you the full purchase price plus sales tax"
> > signs.
> >
> > Just how enforceable are they? IANAL, but:
> > * What consideration have I received that would go towards
> > making these signs a binding contract?
> > * There's no language saying anything like
> > "your continued presence in the gallery constitutes
> > acceptance of these terms", so again, how does the
> > sign bind me?
> > * What happens if I break something before I come to
> > a room where one of these signs is posted, anyway?
>
> Note: I am not a lawyer. This is not legal advice.
>
> I think that you are using contract law to analyse these signs, and
> I think that is a mistake. The sign is not attempting to create
> a contract, it is just informing you of something that is already
> true.
In that case, it is an attempt to mislead. A sign that says "if you
negligently break the display goods we will require you to pay for the
damage" would be legally accurate. A sign that says "if you break the goods
you must buy them at the price displayed" (ie including a profit element)
cannot be true unless it purports to be a contract whereby the customer
assumes a greater liability in consideration for being allowed the privilege
of shopping in that store. And in English law (possibly not the same in all
jurisdictions) you cannot unilaterally impose such a contractual term. Or
probably not.
The goods might be on an overcrowded shelf in an area where lots of
customers are moving about, and they might break without any negligence on
the part of any customer.
>
> If you break something, you need to pay for it. This is true
> if there is a sign there or not. The purpose of the sign is to
> remind you, and raise the chances that you will actually pay.
>
> If you break a window of my car; I can sue you for the money
> to fix the window. I don't need a sign that says "people breaking
> this window will pay for it". Breaking stuff in a store is no
> different.
The difference is the likelihood of an accidental breakage. If you invited
people to examine your car with a view to buying it, and one of the door
handles that you had previously fixed with glue suddenly came off in
someone's hand, would you think it reasonable to make them pay for the
damage? Presumably not.
Seth Breidbart
The Todal <the_tod...@msn.com> wrote:
>The difference is the likelihood of an accidental breakage. If you invited
>people to examine your car with a view to buying it, and one of the door
>handles that you had previously fixed with glue suddenly came off in
>someone's hand, would you think it reasonable to make them pay for the
>damage? Presumably not.
For the damage? Maybe. ("Here's $1, buy some better glue.") For the
car, certainly not.
Seth